Canvas Beauty Brands, LLC

Trademark Trial and Appeal Board

Jan 13, 2021

88285607 (T.T.A.B. Jan. 13, 2021)

This Opinion is Not a
Precedent of the TTAB

Mailed: January 13, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Canvas Beauty Brands, LLC
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Serial No. 88285607
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Ann I. Dennen of Dennen IP Law, LLC,
for Canvas Beauty Brands, LLC.
Galina Gurok, Trademark Examining Attorney, Law Office 126,
Andrew Lawrence, Managing Attorney.
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Before Wolfson, Heasley, and English,
Administrative Trademark Judges.

Opinion by English, Administrative Trademark Judge:
Canvas Beauty Brands, LLC (“Applicant”) seeks registration on the Principal
Register of the mark set forth below for “natural and organic hair products” in
International Class 3:1

1 Application Serial No. 88285607; filed February 1, 2019 under Section 1(a) of the Trademark
Act, 15 U.S.C. § 1051(a), based on Applicant’s allegation of first use and first use in commerce
on August 16, 2018. The term “beauty” has been disclaimed. The application includes the
following description of the mark: “The mark consists of the word ‘CANVAS’ in stylized,
perspective font with partial a [sic] outlines in dark pink and some of the outlines of the
works [sic] in CANVAS are transparent. The mark further consists of the word ‘BEAUTY’ in
script stylized font below the word ‘CANVAS’. The color of the word ‘BEAUTY’ various across
the word from dark brown to medium brow to light brown, to brownish yellow and to yellow
Serial No. 88285607
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I. Bases for Refusal
The Examining Attorney refused registration on grounds that the identification
of goods is indefinite and that the applied-for mark is likely to cause confusion with
two marks registered to two different owners2 under Section 2(d) of the Trademark

in the middle of the word ‘BEAUTY’. From the middle of the word ‘BEAUTY’ the colors vary
back to dark brown from yellow to brownish yellow, to light brown, to medium brown, and
then to dark brown. Further, the letter ‘t’ in the word ‘BEAUTY’ extends up to the word
‘CANVAS’ crossing a portion of the letter ‘A’ and a portion of the letter ‘S.’.” The colors dark
pink, dark brown, medium brown, light brown, a brownish yellow, and yellow are claimed as
features of the mark.
2 Registration No. 1839198 for the mark for “cosmetics; namely, creams for the
care of skin, make-up, blushes, eye make-up and lipstick”; (“cosmetics” disclaimed);
registered September 13, 1993; renewed.
Registration No. 4590046 for the mark for “body, liquid, skin, perfumed, bar, and
bath soaps; shampoos; cleansing milk for toilet purposes; cleaning preparations; abrasive
cloth; essential oils; cosmetic preparations for bath; beauty masks; skin whitening creams;
cosmetics; make-up removing preparations; scented linen water; oils for cosmetic purposes;
perfumes; cosmetic preparations for skin care; cosmetic preparations for slimming purposes;
sun screen preparations; dentifrices; incense; air fragrancing preparations”; registered July
9, 2013; Section 8 accepted.
The Examining Attorney also issued an advisory regarding the potential for refusal under
Section 2(d) based on application Serial No. 88057842 for the mark KANVAS for “cosmetics
and cosmetic preparations; cosmetics and make-up,” but the advisory was obviated when the
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Act, 15 U.S.C. § 1052(d). Applicant filed a notice of appeal. Both Applicant and the
Examining Attorney filed briefs.
We affirm the refusal to register on the ground that the identification of goods is
indefinite. We do not reach the refusal under Section 2(d) of the Trademark Act.
II. Analysis
The Examining Attorney asserts that Applicant’s identification of goods, namely,
“natural and organic hair products” is unacceptable because it is indefinite and broad
enough to encompass goods in more than one class. The Examining Attorney clearly
raised this refusal in the initial Office action issued April 17, 2019,3 but Applicant did
not argue against or even acknowledge this basis for refusal in its Office action
response, filed belatedly on November 21, 2019.4 In the final Office action, issued
January 2, 2020, the Examining Attorney unequivocally made final the requirement
that Applicant clarify the identification of goods.5 Applicant did not file a request for
reconsideration. Nor did Applicant address this basis for refusal in its appeal brief.6
In the examiner’s statement, the Examining Attorney reiterated her arguments
regarding the indefinite nature of Applicant’s identification of goods. Applicant did

cited application was abandoned. April 17, 2019 Office action, TSDR 3; January 2, 2020 Final
Office action, TSDR 4.
3 TSDR 4-6.
4 November 21, 2019 Combined Petition to Revive and Office Action Response. The
application was revived on November 22, 2019.
5 TSDR 4, 6.
6 4 TTABVUE.
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not submit a reply brief, foregoing its final opportunity to explain its failure to comply
with the requirement for a more specific identification of goods.
Under Trademark Rule 2.32(a)(6), 37 C.F.R. § 2.32(a)(6), an application must
specify the “particular goods or services on or in connection with which an applicant
uses or has a bona fide intent to use the mark in commerce.” In re Carlton Cellars,
LLC, 2020 USPQ2d 10150, at *3 (TTAB 2020). To specify the particular goods means
to identify them in an explicit manner. Id; see also TRADEMARK MANUAL OF EXAMINING
PROCEDURE § 1402.01 (Oct. 2018). The identification of goods must be specific,
definite, clear, accurate, and concise. In re Carlton Cellars, 2020 USPQ2d 10150, at
*3; see also In re Societe Generale des Eaux Minerales de Vittel S.A., 1 USPQ2d 1296,
1299 (TTAB 1986), rev’d on other grounds, 824 F.2d 957, 3 USPQ2d 1450 (Fed. Cir.
1987). “An identification that fails to identify the goods and services with specificity
is indefinite, either because the nature of the goods or services is not clear or because
the wording is so broad that it may include goods or services in more than one class.”
In re Carlton Cellars, 2020 USPQ2d 10150, at *4 (quoting TMEP § 1402.01); In re
RSI Sys., LLC, 88 USPQ2d 1445, 1450 n.5 (TTAB 2008) (“If a proposed identification
can be classified in more than one class, it is not an acceptable identification of goods
or services.”) (citing In re Omega SA, 494 F.3d 1362, 83 USPQ2d 1541, 1544 (Fed.
Cir. 2007) (finding “scope of the term ‘chronographs’ is ambiguous for registration
purposes, for it includes both watches and time recording devices”)).
Applicant’s identification of “natural and organic hair products” is indefinite
because the nature of the goods is unclear and the identification is broad enough to
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encompass goods in more than one class. TMEP § 1402.03 (identifying the term
“products” as indefinite and “almost always unacceptable”). For example, the
identification may include natural and organic hair shampoo and conditioner in
International Class 3, natural and organic hair growth stimulants in International
Class 5, natural and organic vitamins for hair care in International Class 5, natural
and organic preparations for destroying lice in hair in International Class 5, natural
and organic hair brushes in International Class 21, or natural and organic hair
extensions, hair weaves and hair bows in International Class 26.
Applicant’s specimens of record indicate that Applicant is using its mark on hair
shampoo and conditioner and hair follicle boosters, but we will not sua sponte limit
Applicant’s identification of goods to these products. In re Carlton Cellars, 2020
USPQ2d 10150, at *4 (refusing to sua sponte amend applicant’s identification of goods
where identification of goods was indefinite). Generally, an applicant need not submit
a specimen for each good in a class so we cannot presume that Applicant doesn’t have
specimens showing use of the mark for different goods in the class. Trademark Rule
2.56(a), 37 C.F.R. § 2.56(a). Moreover, in arguing against the Section 2(d) refusal,
Applicant has not offered clarification regarding the specific nature of its identified
goods.7 Accordingly, we cannot conclude that hair shampoo and conditioner and hair
follicle boosters are the only goods for which Applicant seeks registration or that
Applicant’s goods fall exclusively into International Class 3.

7 In arguing against the Section 2(d) refusal in its Office action response, Applicant referred
to its goods as hair care products, November 21, 2019 Combined Petition to Revive and Office
Action Response, TSDR 10, but this description is also ambiguous.
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There is no further opportunity at this point for Applicant to address the
insufficiency of its identification of goods. Once an application has been considered
and decided on appeal, it will not be reopened except for the entry of a disclaimer or
upon order of the Director, situations not applicable here. Trademark Rule 2.142(g),
37 C.F.R. § 2.142(g). In re Carlton Cellars, 2020 USPQ2d 10150, at *4; TRADEMARK
TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 1218 (2020); TMEP
§ 1501.06.
In view of the foregoing, we affirm the Examining Attorney’s refusal on the ground
that Applicant’s identification of goods is indefinite.
Failure to comply with a legitimate requirement is sufficient grounds for refusal
of registration. See, e.g., In re Carlton Cellars, 2020 USPQ2d 10150, at *5; In re Brack,
114 USPQ2d 1338, 1343 (TTAB 2015) (failure to comply with the requirement to
submit a signed and verified application sufficient basis for refusal); In re Fiat Grp.
Mktg. & Corp. Commc’ns S.p.A., 109 USPQ2d 1593, 1599 (TTAB 2014) (applicant’s
failure to comply with a requirement pursuant to 37 C.F.R. § 2.71(a) for an acceptable
identification of services is ground for refusal to register as to the specified services).
In addition, any attempt to assess the substantive merits of the likelihood of
confusion refusal would be hindered by Applicant’s failure to clarify the goods for
which it seeks registration. In re Carlton Cellars, 2020 USPQ2d 10150, at *5.
Accordingly, we do not reach the Section 2(d) likelihood of confusion refusal. Id.
(“[E]ven if the Board were to consider the Section 2(d) refusal, the end result would
not change, given that we found that Applicant failed to comply with the [fee and
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identification] requirements and affirmed the refusal of registration on that basis.”);
see also In re Brack, 114 USPQ2d at 1343 (declining to reach refusal under Section
2(d) because applicant failed to comply with the requirement to submit a signed and
verified application); In re DTI P’ship, LLP, 67 USPQ2d 1699, 1702 (TTAB 2003)
(declining to reach refusal under Trademark Act Section 2(e)(1) because applicant
failed to comply with Trademark Rule 2.61(b) requirement for information).
Decision: We affirm the Examining Attorney’s refusal to register Applicant’s
mark for “natural and organic hair products” based on Applicant’s failure to comply
with the requirement for a definite statement of goods.